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[2026] NSWCA 3
respondent. The notice of motion filed 24 October 2025 was dismissed with costs; the appeal was dismissed; and Yufeng was ordered to pay Guo’s costs of the appeal: [65].
Yufeng appealed after the trial judge allowed Guo to amend his Commercial List Statement at the start of trial, reducing two alleged interest-payment figures. The Court of Appeal held that the UCPR rule about withdrawing admissions applies to defences and later pleadings, not to a statement of claim. It also held that the rule’s formal notice process does not apply when a party obtains the court’s leave to amend. The amendment order remained effective, and Yufeng had not objected or sought to revisit it during the trial. The original particulars were part of Guo’s claim, not admissions, and did not prove that the disputed amounts were repayments of principal. The appeal was dismissed.
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2,623 words · generated 08/10/2026
Yufeng Investment Group (Australia) Pty Ltd appealed from a Supreme Court judgment concerning a claimed $16.8 million loan. Wencheng Guo alleged that he had lent the money to Changran Huang and that Yufeng guaranteed repayment. The dispute in the appeal was not about the primary judge’s principal findings on the existence of the loan, the guarantee, or the amount calculated as remaining due. Kirk JA recorded that neither side challenged the primary judge’s careful reasons on those matters. Yufeng’s target was the decision made at the start of trial to let Guo file an amended Commercial List Statement (CLS) [4]-[6].
6 cited instruments linked from this judgment.
The original CLS included Schedule A, headed “Particulars of interest payments”. It listed 15 payments, including item 3, recorded as $700,000, and item 4, recorded as $1,930,000 [10]-[11]. At the commencement of the five-day hearing, Guo sought leave to amend the CLS. The changes reduced item 3 to $200,000 and item 4 to $232,869.50. Guo’s counsel described the changes as reflecting the evidence. The trial judge asked whether there was consent to the amendments. Guo’s counsel said there was no opposition, and the judge granted leave [11], [17]-[18].
The reduction in the interest amounts meant that, on the pleaded case, more remained owing under the loan. The defendants did not object to the changed figures at the time or raise the issue during the hearing [4], [18]. The primary judge later found that the loan was interest-free and that the payments listed in the amended schedule were repayments of capital. The judgment ordered Huang and Yufeng to pay $2,912,358.44 as the remaining balance [5], [24]-[25].
On appeal, Yufeng argued that the original figures were admissions; that the process in UCPR r 12.6 for withdrawing admissions had not been followed; and that the original figures should be treated as showing additional repayments of capital. Yufeng sought a reduction of about $2.2 million in the amount payable [7]. The Court of Appeal rejected the arguments and dismissed the appeal [55]-[65].
The case therefore addresses several linked procedural points: how r 12.6 is construed; whether its formal notice procedure governs a court-authorised amendment; what follows if procedural requirements were not met; and whether the original particulars were admissions capable of supporting Yufeng’s proposed inference.
Kirk JA treated r 12.6 as a single, connected rule. Subrule (1) permits withdrawal of matter raised in a defence or later pleading. Subrule (2) limits that permission where the matter is an admission or otherwise benefits another party. Subrules (3) and (4) prescribe the notice procedure, including a consent notice when consent is required [26]-[33]. The starting point was that the subrules should be read together, in their context and in light of their purpose [29].
The decisive construction was that r 12.6(2) does not apply to statements of claim. The rule’s heading refers to withdrawal of matter in a “defence or subsequent pleading”, and the structure links subrule (2) to the withdrawal process in subrule (1). The phrase “[d]espite subrule (1)” links the provisions rather than creating a stand-alone rule about every kind of admission [42]-[44]. Kirk JA also noted that other UCPR provisions expressly address particular admissions, including admissions made voluntarily or in response to notices to admit [43]. The Court therefore did not accept the broader construction adopted in Khouri and Marahra [43].
The Court considered the form of the documents relevant. It assumed, consistently with Roberts v Goodwin Street Developments Pty Ltd, that a Commercial List Statement could be equated with a statement of claim for the relevant rules [9]. On that footing, r 12.6 did not regulate the amendments to Guo’s CLS [56].
The Court then addressed Yufeng’s alternative submission: even if r 12.6 applied, a formal notice under subrules (3) and (4) should have been required in addition to the amendment process. Kirk JA rejected that reading. Rule 12.6 provides a way for a party to withdraw matter in a defence without formally amending the document. Amending a pleading by leave is a separate, established route. It would be an unwarranted complication to require both the amendment application and a separate withdrawal notice [32], [48]. In the Court’s view, marked-up amendments put the other party in a position to assess the proposed changes, and the court can generally rely on represented parties to protect their own interests [48]-[50].
The Court also relied on the events at trial. The proposed amendments were explained, the defendants did not oppose them, and leave was granted. The exchange supported the inference that the defendants had advance notice of the changes, although the Court described that as implicit rather than making an express finding about the precise notice arrangements [17]-[18]. Yufeng had experienced legal representation, did not object during the hearing, and did not suggest that its position had been given by mistake [59]-[60].
A separate point concerned the legal effect of the leave order. Even if some procedural requirement had not been met, that would not itself invalidate the order. Section 63 of the Civil Procedure Act 2005 (NSW) provides that failure to comply with a rule is an irregularity and does not invalidate proceedings or a document, judgment or order. The Court also stated that a Supreme Court order is valid until set aside [52]. Yufeng therefore needed to make out a case for revoking or altering the interlocutory amendment order, rather than simply point to an alleged defect in the r 12.6 process [53]-[54], [58].
That proposed challenge also failed on the circumstances. The amendment was made at the start of trial, after an opportunity to oppose it, and Yufeng did not seek to reopen the matter during the five-day hearing. The Court said that if Yufeng had wished to change its position during the trial, it would have been expected to explain why. The need for a justification was stronger when the objection was raised only on appeal, after the trial was complete [59]-[60].
Finally, the Court rejected the premise that the original particulars were admissions. They were part of Guo’s positive assertion about his claim: they identified amounts he said had been received as interest. They were not responses to allegations by another party [61]. Nor did an assertion that the payments were interest establish that, if they were not interest, they had to be repayments of principal. The primary judge had treated payments in the amended schedule as capital repayments after analysing the evidence and considering a concession made in closing submissions. The Court said it could not assume that the same analysis or concession would apply to the larger amounts originally listed [62]-[63].
Before this decision, the precise scope of UCPR r 12.6(2) had been treated inconsistently in first-instance decisions. The judgment identifies Khouri and Marahra as taking a broader view that the provision was not confined in the way its heading might suggest and could concern admissions outside the ordinary withdrawal of matters in a defence [43]. Kirk JA rejected that approach, reasoning that it divorces subrule (2) from the rest of r 12.6 and treats the rule as a disconnected provision [42]-[44].
After this decision, the Court of Appeal’s construction is that r 12.6, including subrule (2), applies to defences and subsequent pleadings, not statements of claim. For Commercial List proceedings, the Court assumed that a CLS stands in the place of a statement of claim for this purpose [9], [42]-[44]. The judgment therefore gives an appellate answer to that interpretive question.
The decision also clarifies the relationship between the r 12.6 notice procedure and amendment by leave. The rule’s withdrawal notice is a procedural facility. It does not impose an additional formality when a party instead pursues the ordinary amendment process and obtains leave of the court [32], [48]-[51]. The Court relied on earlier authority including Global Alliance Network v Sensis, where an amended defence filed without objection was treated as having been filed with consent or with the court’s leave, with the result that an earlier admission was withdrawn [50]. It also referred to Owners Strata Plan No 80453 v Walsh and Investec Bank v Burge as expressing similar views [51].
The judgment does not resolve every possible issue about admissions. Kirk JA observed that r 12.6(2) may not address the more common process of seeking leave to amend a defence at all, but found it unnecessary to decide that point [38]-[39]. The judgment also leaves open whether a general legal principle requiring leave to withdraw formal admissions that have narrowed issues might apply to a statement of claim. Yufeng did not rely on that broader argument [40]-[41]. The Court’s holding is therefore focused on the rule’s text, the document before it, the amendment order and the particular appeal.
At [42], Kirk JA stated: “Rule 12.6, including subrule (2), applies to defences or subsequent pleadings. The rule does not apply to statements of claim.” In plain English, the restriction on withdrawing admissions in r 12.6(2) was not a general rule covering every assertion made in litigation. It formed part of a rule about changing matter pleaded in a defence or later pleading.
At [48], the Court said it would be “ironic” if a provision offering a simple withdrawal route instead imposed extra formality on a party taking the separate route of asking to amend a defence. The point is practical as well as textual: filing a withdrawal notice under r 12.6 and seeking leave to amend a pleading are distinct procedures. The rule did not require both at once.
At [49], the Court referred to the adversarial nature of Australian litigation and said courts are generally entitled to rely on represented parties to protect their own interests. In context, that meant a party receiving marked-up proposed amendments and consenting to them could be expected to consider their effect, including whether they removed an admission. The Court also invoked the principle that parties are bound by the conduct of their counsel.
At [52], the Court stated that an order of the Supreme Court “is valid until set aside”. Put simply, an alleged procedural error does not automatically make an order disappear. A party seeking to undo an interlocutory order must obtain a further order revoking or altering it. Section 63 of the Civil Procedure Act reinforces that procedural non-compliance is generally an irregularity, not an automatic invalidation.
At [61], the Court described items 3 and 4 as part of Guo’s “positive assertion” of his own claim. In plain English, Guo was saying what he alleged had happened, rather than conceding something in response to an allegation made against him. At [62], the Court added that a payment not being interest did not logically make it a capital repayment. Other possible arrangements or explanations could exist, and the trial judge’s treatment of the amended figures depended on the evidence and a concession.
The decision is most directly relevant where a party seeks to change a statement of claim or a Commercial List Statement and the opposing party argues that the change withdraws an admission under UCPR r 12.6(2). The Court’s answer is that the rule does not apply to statements of claim, with a CLS treated as equivalent for the purpose of this case [9], [42]-[44].
It is also relevant where a party seeks leave to amend a defence and an opponent argues that a separate notice under r 12.6(3)-(4) was required. The Court’s reasoning is that the formal notice procedure applies to withdrawal under r 12.6, not to the distinct process of obtaining leave to amend [45]-[51]. The point is particularly pertinent where the proposed amendments are marked up and presented to the other side and the court, and the other party does not oppose them.
A further trigger is a later attempt to challenge an interlocutory amendment order because the party says it did not appreciate the effect of the proposed amendments. The judgment indicates that the order continues to operate unless altered or revoked, and the party seeking that relief must explain the alleged mistake and justify the requested change [52]-[54]. The timing and conduct of the parties matter in the circumstances considered: the proposed amendments were raised at the start of a five-day trial, and no objection was made during the hearing [59]-[60].
The decision also matters where a party attempts to turn an assertion in an opponent’s own claim into an admission. The Court distinguishes an assertion forming part of a claimant’s positive case from a response to an opposing allegation [40]-[41], [61]. Finally, where pleaded particulars identify a payment as interest, the decision cautions against treating that description as necessarily establishing that the money was principal if it was not interest [62]-[63].
The supplied judgment contains no references to later decisions applying, distinguishing or otherwise treating Yufeng v Guo. It is a decision dated 6 February 2026, and the material provided ends with the Court’s orders. Accordingly, this source does not support conclusions about how subsequent courts have received the decision.
The judgment itself does explain its treatment of earlier authorities. It rejects the approaches in Khouri and Marahra on the scope of r 12.6(2), and does not follow the formalistic position associated with Omaya Holding about requiring a distinct notice when an amendment is sought [43], [47]-[48]. It refers to Global Alliance Network v Sensis, Owners Strata Plan No 80453 v Walsh and Investec Bank v Burge in support of the view that an unopposed amended pleading may operate to withdraw an earlier admission where consent or leave is present [50]-[51].
For a later-treatment analysis, relevant material would need to include subsequent judgments and their treatment of this decision. That evidence is not included in the supplied text, so no account of later judicial application can be given on this source alone.
The decision expressly leaves open whether r 12.6(2) applies when a party seeks leave to amend a defence to remove an admission. Kirk JA considered that the rule may be directed only to withdrawal by the specific notice procedure, but did not resolve the issue because it was unnecessary to decide the appeal [38]-[39]. The Court stated that, even if the rule did apply to such an amendment, the court would still consider whether leave should be granted, having regard to matters such as the reason for withdrawal, the stage of the proceeding and prejudice under the Civil Procedure Act [39].
The judgment also leaves open whether a general principle requiring leave to withdraw a formal admission could apply to an assertion in a statement of claim in some particular circumstances. The Court noted that an admission is ordinarily responsive to something, while a statement of claim usually contains positive assertions. It did not rule out that a statement in a claim might, in a specific context, amount in substance to an admission [40]-[41].
Other questions are fact-dependent rather than resolved as broad propositions. The Court did not decide exactly what evidence or explanation would be needed to revoke an amendment order where a party genuinely misunderstood the proposed amendments. It said the party seeking revocation bears the onus and that the statutory case-management considerations are relevant [53]. Nor did it determine whether every unopposed amendment will necessarily amount to consent to withdraw an admission. Its reasoning relied on the particular circumstances: the changes were identified, leave was sought, the defendants did not oppose them, and no mistake was raised during trial [17]-[18], [59]-[60].
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Yufeng Investment Group (Australia) Pty Ltd v Guo [2026] NSWCA 3
Hearing dates: 19 November 2025
Date of orders: 6 February 2026
Decision date: 06 February 2026
Before: Bell CJ at [1];
Kirk JA at [2];
Adamson JA at [66]
Decision: (1) Appellant’s notice of motion filed 24 October 2025 dismissed with costs.
(2) Appeal dismissed.
(3) Appellant to pay the first respondent’s costs of the appeal.
Catchwords: CIVIL PROCEDURE – Admissions – Withdrawal – unopposed amendment of Commercial List Statement during trial – whether amendment amounted to withdrawal of admission – construction of UCPR r 12.6(2) – rule does not apply to statements of claim – rule does not require provision of formal notice where court’s leave to amend a document is sought
Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56-58, 60, 63, 64
Interpretation Act 1987 (NSW) ss 34(2)(a), 35(2)(a)
Rules of the Supreme Court (Revision) 1965 of England Order 21 r 2(2)(a)
Supreme Court Rules 1970 (NSW) Pt 21 rr 3, 5 (repealed)
Uniform Civil Procedure Rules 2005 (NSW) rr 12.6, 14.26(1), 17.2(2), 17.3(3), 17.4(3), 19.1
Cases Cited: Attorney-General (Tas) v Casimaty [2024] HCA 31; (2024) 98 ALJR 1139
Coates-Kelly v New Zealand (2022) 294 FCR 422; [2022] FCAFC 131
Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738
Drabsch v Switzerland General Insurance Co Ltd (Supreme Court (NSW), Santow J, 16 October 1996, unrep)
Global Alliance Network Pty Ltd v Sensis Pty Ltd [2007] NSWCA 163
Investec Bank (Australia) Limited v Steven Burge (No 3) [2012] NSWSC 7
J & M McNamee Holdings Pty Ltd v Mungerie Vale Pty Ltd trading as Greenwood Group Realtors [2019] NSWCA 283
Khouri v National Australia Bank Ltd [2007] NSWSC 987
Marahra Holdings Pty Limited v Insurance Australia Limited [2024] NSWSC 1368
Moore (a pseudonym) v The King [2024] HCA 30; (2024) 98 ALJR 1119
Mullins v Howell (1879) 11 Ch D 763
Owners Strata Plan No 80453 v Walsh [2014] NSWSC 729
Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29
Productivity Partners Pty Ltd v Australian Competition and Consumer Commission (2024) 281 CLR 338; [2024] HCA 27
Roberts v Goodwin Street Developments Pty Ltd (2023) 110 NSWLR 557; [2023] NSWCA 5
Sergi v Sergi [2019] NSWSC 865
SLE Worldwide Australia Pty Ltd v Wyatt Gallagher Bassett Pty Ltd [2005] NSWSC 816
Spincer v Watts (1889) 23 QBD 350
State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26
The Nominal Defendant v Gabriel (2007) 71 NSWLR 150; [2007] NSWCA 52
The Owners – Strata Plan No 82089 v Omaya Holding Pty Ltd [2024] NSWSC 992
Texts Cited: Macquarie Dictionary
Ritchie’s Uniform Civil Procedure
Category: Principal judgment
Parties: Yufeng Investment Group (Australia) Pty Ltd ACN 160 437 374 (Appellant)
Wencheng Guo (First respondent)
Changran Huang (Second respondent)
Representation: Counsel:
V Bedrossian SC (Appellant)
TD Castle SC and D Levi (First respondent)
Submitting appearance (Second respondent)
Solicitors:
Mitry Lawyers (Appellant)
Legal Point Lawyers & Attorneys (First respondent)
Unsworth Legal (Second respondent)
File Number(s): 2025/10182
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
Mr Wencheng Guo (the first respondent) commenced proceedings in the Equity Division of the Supreme Court in late 2022. Amongst other things, he sought repayment of a loan of $16.8 million (the Loan) he said he had made to Mr Changran Huang (the second respondent), and which he alleged was guaranteed by a company related to Mr Huang, Yufeng Investment Group (Australia) Pty Limited (the appellant).
In his Commercial List Statement (CLS) Mr Guo particularised various payments which he alleged were payments of interest made pursuant to the Loan. At the commencement of the hearing before the primary judge, Mr Guo sought and was granted leave to file an amended CLS (ACLS). The changes included amendment of two of the particularised figures (items 3 and 4), with the effect of reducing the sum of the interest payments he alleged had been made in relation to the Loan. The amendment was not opposed by Mr Huang and Yufeng and they did not raise any concern relating to the changed figures at any stage during the hearing.
The primary judge relevantly held that there was an oral loan agreement between Mr Huang and Mr Guo, by which the latter loaned $16.8 million to the former, with the Loan guaranteed by Yufeng. His Honour also held that no interest was payable under the terms of the Loan and that the payments which Mr Guo had claimed were for interest were in fact repayments of capital. On that basis his Honour held that repayments of $13,472,869.50 plus 4 million Chinese yuan had been made. He subsequently made an order that Yufeng and Mr Huang pay Mr Guo $2,912,358.44, being the calculated remaining balance of the Loan.
Yufeng appealed, in substance asserting that:
The Court held (Kirk JA, Bell CJ and Adamson JA agreeing), dismissing the appeal:
Sergi v Sergi [2019] NSWSC 865, referred to.
Khouri v National Australia Bank Ltd [2007] NSWSC 987; Marahra Holdings Pty Limited v Insurance Australia Limited [2024] NSWSC 1368, not followed.
Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29; Productivity Partners Pty Ltd v Australian Competition and Consumer Commission (2024) 281 CLR 338; [2024] HCA 27; Global Alliance Network Pty Ltd v Sensis Pty Ltd [2007] NSWCA 163; Investec Bank (Australia) Limited v Steven Burge (No 3) [2012] NSWSC 7; Owners Strata Plan No 80453 v Walsh [2014] NSWSC 729, referred to.
The Owners – Strata Plan No 82089 v Omaya Holding Pty Ltd [2024] NSWSC 992, not followed.
Civil Procedure Act 2005 (NSW), s 63, applied.
BELL CJ: I agree with Kirk JA.
KIRK JA: This appeal concerns r 12.6 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) which deals with a procedure for the withdrawal of any matter in a defence or subsequent pleading. The appeal focuses on two particulars in a Commercial List statement being withdrawn by means of the unopposed filing of an amended statement. The appellant has now claimed on appeal that those amendments effected the withdrawal of admissions in a manner precluded by r 12.6. In fact the rule is not relevant to the matter.
Mr Wencheng Guo (the first respondent) commenced proceedings in the Commercial List in the Equity Division of the Supreme Court in late 2022. Amongst other things, he sought repayment of a loan of $16.8 million (the Loan) he said he had made to Mr Changran Huang (the second respondent), and which he alleged was guaranteed by a company related to Mr Huang, Yufeng Investment Group (Australia) Pty Limited (the appellant).
In his Commercial List Statement (CLS) Mr Guo particularised various payments which he alleged were payments of interest made pursuant to the Loan. At the commencement of the hearing before the primary judge, Nixon J, Mr Guo sought and was granted leave to file an amended CLS (ACLS). The changes included amendment of two of the particularised figures (items 3 and 4), with the effect of reducing the sum of the interest payments he alleged had been made in relation to the Loan. By taking that step Mr Guo was effectively pleading that more money was owing under the Loan than what had originally been pleaded. The amendment was not opposed by Mr Huang and Yufeng; on one view they gave their consent. They did not raise any concern relating to the changed figures at any stage during the hearing. His Honour’s judgment thus did not traverse the issue: Guo v Yufeng Investment Group (Australia) Pty Ltd [2024] NSWSC 1599.
The primary judge relevantly held that there was an oral loan agreement between Mr Huang and Mr Guo by which the latter loaned $16.8 million to the former, with the Loan guaranteed by Yufeng. His Honour also held that no interest was payable under the terms of the Loan and that the payments which Mr Guo had claimed were for interest were in fact repayments of capital. On that basis his Honour held that repayments of $13,472,869.50 plus 4 million Chinese yuan had been made. He subsequently made an order that Yufeng and Mr Huang pay Mr Guo $2,912,358.44, being the calculated remaining balance of the Loan. It is that order which is now disputed.
It is notable that no part of his Honour’s careful and lengthy reasons for judgment, dealing with a range of issues, is challenged by either side. What Yufeng really challenges is his Honour’s decision at the commencement of the hearing to make an order that Mr Guo have leave to file the ACLS.
While Commercial List statements and responses “differ from pleadings in substance, they nevertheless stand in the place of pleadings in proceedings commenced in the Commercial List and Technology and Construction List”: Roberts v Goodwin Street Developments Pty Ltd (2023) 110 NSWLR 557; [2023] NSWCA 5 at [61]. It is convenient to assume here that a Commercial List statement can be equated with a statement of claim for the purposes of the rules: note ibid at [60]-[66].
In his CLS Mr Guo pleaded that in October 2013 he had reached an agreement to loan Mr Huang $16.8 million with interest payable at 24% per annum, with Yufeng guaranteeing repayment of the loan, and which loan amount was transferred that month. He pleaded at [67] of the CLS that Mr Huang caused payments of interest under the loan agreement to be paid to Mr Guo. The particulars provided for that paragraph stated: “The date and amount of each payment is set out in Schedule A”. Schedule A to the CLS was headed “Particulars of interest payments”. It identified 15 itemised payments, totalling $15.67 million and 4 million yuan. Mr Guo then pleaded that the loan had not been repaid in full. He did not assert that there had been any repayments of capital, merely that interest had been paid.
The ACLS involved a limited number of amendments to the CLS. The changes were marked up in the conventional way by striking out deletions and underlining additions. In Schedule A two of the payments were amended. For item 3, the date was changed from 13 December 2017 to 10 August 2017, and the amount was reduced from $700,000 to $200,000. For item 4, the date was changed from 13 December 2017 to 2 November 2017 and the amount reduced from $1,930,000 to $232,869.50. The effect of those amendments was that the claimed amount owing by Mr Huang to Mr Guo pursuant to the loan was greater than it originally was on the basis that less interest was now alleged to have been paid.
In his Commercial List response (CLR) Mr Huang admitted that some $16.8 million had been transferred from Mr Guo to Yufeng, denied that this was done pursuant to the claimed oral loan agreement, and as regards items 3 and 4 in Schedule 1 claimed that these payments were actually a loan made by Mr Huang to Mr Guo. Mr Huang denied [67] of the CLS relating to the claimed interest payments. In its CLR, Yufeng also admitted that some $16.8 million had been transferred to it by Mr Guo, but otherwise it did not admit the allegations, including [67].
In May 2024 Mr Huang filed an amended CLR (ACLR). No amendment was made in his response to [67] of the CLS. In the same month Yufeng filed an ACLR in which it now denied that the amounts identified in Schedule A were payments of interest (and denied [67]) but alleged that those amounts were transferred by way of loan from Mr Huang to Mr Guo (consistently with Mr Huang’s case). It then said, alternatively, that the amounts were transferred by way of repayment of principal owing to Mr Guo.
The hearing below occurred over five days commencing on 4 November 2024. Each of Mr Guo, Mr Huang and Yufeng was represented by senior and junior counsel and a law firm.
At the commencement of the first day of the hearing, after raising an issue about late and incomplete discovery by some of the defendants, the then senior counsel for Mr Guo (Mr Henry) sought leave to file in court the ACLS and two amended replies. The following exchange occurred (emphasis added):
HENRY: … Your Honour, we have prepared an amended commercial list statement and two amended replies and if I could, I seek leave to file them in court, but I’ll first take your Honour through, if I may, what the changes are.
HIS HONOUR: I take it then that there’s consent to the amendments?
HENRY: I think, is it accurate to say there’s no opposition. Yes, I’m told yes is the answer to that.
HIS HONOUR: Yes.
HENRY: Would it assist if I take your Honour, just through the changes?
HIS HONOUR: Yes.
HENRY: So in relation to the proposed amendments to the commercial list statement there are three, and these amendments, we say, are directed at trying to reflect the contents of the evidence that’s on rather than add anything new or different to that evidentiary matrix. …
And then the final change is in the schedule, sch A at p 20, your Honour. Page 20 has the particulars of interest payments, and your Honour will see there are changes to that schedule, which we say reflect the evidence that we’ll take your Honour to [in] due course.
HIS HONOUR: Yes, I see.
HENRY: So that’s the amended commercial list statement.
HIS HONOUR: Yes, well I’ll give leave to file in court the amended commercial list statement, I’ve initialled and dated.
The amendments made to Schedule A – and the basis of Mr Huang’s and Yufeng’s assertions about a loan having been made by Mr Huang to Mr Guo – were connected to an agreement made on 20 December 2017 between Mr Guo and Yufeng. It is not necessary to go into the details of this agreement.
In short, Mr Guo gave evidence that after chasing Mr Huang to repay the Loan and asking to be paid interest to support his living costs, Mr Huang offered to loan him funds on the basis that Mr Guo wrote an “IOU note”, which he did. That note indicated that Mr Guo owed Mr Huang $2.63 million. That amount corresponded to the sum of items 3 and 4 in Schedule A to the CLS. Originally, thus, Mr Guo had alleged in the CLS that that whole amount had been transferred to him but said that this had actually represented interest payments on the loan on which he was suing. Yet in his affidavits Mr Guo did not give evidence that he had in fact received $2.63 million (whether or not he had, and if so for what reason and under what terms, is not currently to the point).
After the CLS was amended, Mr Guo no longer alleged that he had received $2.63 million, whether as interest payments or otherwise. Rather, he focused simply on two particular, smaller payments which he said had been paid as interest.
As the primary judge noted at [288], no cross-claim asserting the existence of a loan of $2.63 million, as set out in the IOU note, was brought by Mr Huang. Although Mr Huang had filed two affidavits, he did not give evidence. Parts of one of his affidavits were tendered as admissions by Mr Guo.
Mr Guo was cross-examined by Mr Huang’s senior counsel on the IOU note (Yufeng’s senior counsel did not cross-examine him at all). The denouement of that portion of the cross-examination was the suggestion to Mr Guo that “you didn’t use your claim for unpaid interest as leverage against Mr Huang, because you didn’t have a claim for unpaid interest”. Thus the position being put on behalf of Mr Huang was that such money as had been paid was not for interest because there was no entitlement to interest. It was not put to Mr Guo that he had in fact received $2.63 million, nor was it put that that amount had been paid as a repayment of the Loan. Nor was that case put in the submissions of either Mr Huang or Yufeng.
The primary judge did not address the difference between the sums referred to in the respective Schedules of the CLS and ACLS. His Honour had no reason to do so, the issue not having been raised. His Honour noted at [257] that it was common ground that Mr Guo had transferred $16.8 million to Yufeng, doing so pursuant to an oral agreement with Mr Huang. His Honour then identified the issues in dispute in relation to the Loan, including: whether interest was payable on the principal sum at a rate of 24% or whether it was interest-free; whether payments had been made in respect of the Loan and whether such moneys had been paid in reduction of principal or interest; and whether the Loan was repayable on demand and, connectedly, whether the claim was statute-barred as a result.
His Honour concluded that interest was not payable pursuant to the Loan (at [363]). His Honour further held that each payment specified in Schedule A had been made and was in fact a repayment in respect of the Loan. He held that if the Loan was repayable on demand, each repayment made constituted a confirmation such that the claim was not statute-barred (at [379]-[385]).
12.6 Withdrawal of matter in defence or subsequent pleading (cf SCR Part 21, rules 3 and 5; DCR Part 18, rule 2; LCR Part 17, rule 2)
(1) A party raising any matter in a defence or subsequent pleading may withdraw the matter at any time.
(2) Despite subrule (1), a party may not withdraw any admission, or any other matter that operates for the benefit of another party, except with the consent of the other party or by leave of the court.
(3) A withdrawal under this rule is to be made by filing a notice of withdrawal stating the extent of the withdrawal.
(4) If the withdrawal is by consent, the notice under subrule (3) must be accompanied by a notice from each party whose consent is required by subrule (2) to the effect that the party consents to the admission or other matter being withdrawn in accordance with the notice of withdrawal.
3 Withdrawal of defence, reply etc cf RSC (Rev) 1965, O 21, r 2 (2)(a).
(1) A party raising any matter in a defence or subsequent pleading may withdraw that matter at any time.
(2) Subrule (1) does not enable a party to withdraw, without the consent of another party or the leave of the Court, an admission or any other matter operating for the benefit of that other party. …
5 Mode of discontinuance or withdrawal
(1) A discontinuance or withdrawal under rule 2 or rule 3 shall be made by filing a notice stating the extent of the discontinuance or withdrawal.
cf RSC (Rev) 1965, O 21, r 2 (1), (2), (4).
(2) Where the discontinuance or withdrawal is by consent, the notice under subrule (1) must bear the consent of each consenting party. …
cf RSC (Rev) 1965, O 21, r 2 (4).
Rule 12.6 falls to be construed by reference to its text, context and purpose. The four subrules should be construed together. That is the natural inference, subject to any contrary indication, given that they are grouped together under the one heading.
Subrule (1) permits a party to withdraw any matter raised in a defence or in a subsequent pleading (in what follows I will just focus on a defence).
Subrule (2) limits the extent to which that can be done, in prescribing that an admission or other matter that operates for the benefit of another party may not be withdrawn except with consent of the other party or leave of the court.
Subrule (3) provides for how a withdrawal under subrule (1) is to be effected, that is, simply by filing a notice of withdrawal stating the extent of the withdrawal. Subrule (3) is to be contrasted with earlier approaches whereby notice could be effected by letter: note Spincer v Watts (1889) 23 QBD 350. And the Rules of the Supreme Court (Revision) 1965 of England provided that a defendant “may, without leave of the Court … withdraw his defence or any part of it at any time … by serving a notice to that effect on the plaintiff or other party concerned” (see Order 21 r 2(2)(a) – that being the rule referred to in the heading to SCR Pt 21 r 3). Rule 12.6, like its predecessor in the SCR, has gone further than its progenitors by requiring that the withdrawal be done by notice, which notice must be filed and not merely served. But withdrawal of a matter under the rule remains a distinct process from amending a defence.
Subrule (4) of r 12.6 spells out a further aspect of how a withdrawal is to be effected. If the withdrawal is by consent then the notice must be accompanied by a consenting notice from each party whose consent is required by subrule (2). Subrule (4) should be read together with subrule (2). That is, it only applies in circumstances where the party is withdrawing a matter in a defence or subsequent pleading which is an admission or that operates for the benefit of another party (in other words, where the withdrawal is to the detriment of the other party). In such instances that other party’s consent is required. If the other party’s consent is not required because subrule (2) does not apply, then a notice of withdrawal need not be accompanied by any consenting notice.
An effect of r 12.6 is that a defendant can withdraw part of their defence directly by their own action, without seeking consent of the other party or parties, and without going through the process of formally seeking the court’s leave to amend the defence. The defendant may simply file a notice of withdrawal under the rule, subject to the need for consent or leave if the withdrawal is the detriment of the other side. The rule is a facultative one. The commentary in *’* at [12.6.5] correctly summarises the position:
Under the present rule, matters raised in a defence can be withdrawn at any time, either before or after the commencement of the hearing, and without any requirement for leave. This permissive rule principally applies where a defendant either does not wish to contest the proceedings, or does not wish to pursue a particular ground of defence. If the defence as a whole is withdrawn, the plaintiff will be entitled either to default judgment or judgment on admissions: Cooper-Dean v Badham [1908] WN 100 and see UCPR rr 16.2–16.3 (default judgment) and UCPR r 17.7 (judgment on admissions).
For example, a defendant might withdraw its denial of a pleaded allegation that it had done a particular thing, or had breached a contract, or that its actions had caused loss. To withdraw the denial would leave the allegation unanswered in the defence such that, pursuant to r 14.26(1), the allegation would be taken to be admitted. The rule thus enables a defendant to narrow the issues in dispute. If the defendant withdrew its entire defence – in other words, no longer contested the claim – then so long as the plaintiff had pleaded a complete cause of action it would be entitled to judgment.
If the withdrawal would be to the detriment of the other party then consent or leave is needed. In such cases the withdrawing party is broadening the issues in dispute, by backtracking on its earlier narrowing of the issues by having made an admission or pleaded something to the other side’s benefit. If consent or leave is granted then, again, there is no need formally to amend the defence.
If a notice was filed without consent but in fact it withdrew a matter that was an admission or was properly characterised as for the benefit of another party, then the notice would be ineffective to withdraw that matter. That is so because r 12.6 would not give legal effect to the notice to that extent, it being outside the operation of the rule. If the other party was concerned that this had occurred, it would be appropriate to raise this promptly with the withdrawing party and, absent agreement being reached, one side or the other should raise the issue before the court.
There is much to be said for the view that r 12.6(2) simply does not address the other, more common way in which a defendant might alter its pleading, namely by seeking leave to amend its defence. That construction is consistent with the context outlined. Nothing in r 12.6 refers to amendments. The natural reading of the word “withdraw” in subrule (2) is that it refers to the withdrawal of a matter pursuant to the particular procedure addressed in subrules (1), (3) and (4), as just discussed. The construction also reflects the wording of the previous Supreme Court rule (see above at [27]).
However, the contrary has generally been assumed, as manifest in countless cases. It is not necessary to resolve the issue here. And in any event that construction would likely make no practical difference. If the amendment was not consented to then the defendant still would need to persuade the court that leave to amend – and to withdraw the admission – should be given. Courts have required that sufficient cause be shown for withdrawal of other formal admissions which had narrowed the issues in dispute, such as those made on behalf of a party by counsel: see the discussion in eg Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738; Drabsch v Switzerland General Insurance Co Ltd, (Supreme Court (NSW), Santow J, 16 October 1996, unrep); [2005] NSWSC 816 at [57]; (2007) 71 NSWLR 150; [2007] NSWCA 52 at [103]-[112]; [2019] NSWCA 283 at [73]; (2022) 294 FCR 422; [2022] FCAFC 131. Those principles would apply to contested applications to amend a defence or later pleading so as to remove an admission, even if r 12.6(2) did not apply. And, either way, the matters addressed in ss 56-58, 60 and 64 of the (NSW) would be relevant, including the reason given for seeking to withdraw the admission, the stage of proceedings, and any prejudice suffered by the other party.
[23] … In the context of pleadings, an admission by a party can arise in response to an allegation made by an opposite party (see UCPR r 14.26). That is not the case where a party makes an assertion that is contained within a statement of claim or a statement of cross-claim.
Rule 12.6(2) cannot be read in a way that is divorced from the context of the other subrules, which operate cohesively in the manner just explained. Rule 12.6, including subrule (2), applies to defences or subsequent pleadings. The rule does not apply to statements of claim: note Sergi at [22].
A contrary view has been taken by some: Khouri v National Australia Bank Ltd [2007] NSWSC 987 at [2] (Gzell J); Marahra Holdings Pty Limited v Insurance Australia Limited [2024] NSWSC 1368 (Schmidt AJ). In the latter case, her Honour said that “[b]y way of contrast to r 12.6(1), r 12.6(2) is not concerned with pleadings” (at [47]), adding at [50]-[51] that an admission can be made in many different ways. That view should not be accepted:
It treats subrule (2) as though it were a distinct rule, divorced from its context, thus failing to take account of the facultative, cohesive nature of r 12.6.
It is inconsistent with the heading of rule 12.6: “Withdrawal of matter in defence or subsequent pleading”. The heading of a provision is not deemed to be part of the UCPR: Interpretation Act 1987 (NSW), s 35(2)(a). Nonetheless it can be considered as part of the context used to construe the rules: ibid*,* s 34(2)(a); Attorney-General (Tas) v Casimaty [2024] HCA 31; (2024) 98 ALJR 1139 at [29]. Yufeng submitted that the wording of the heading of r 12.6 was drawn from the subject matter of r 12.6(1) and that sub-rule is “directed to a different issue or concern”. But the heading applies to the whole of r 12.6, and throws some light on the scope and purpose of the rule. Yufeng’s submission that subrules (1) and (2) operate independently of each other would render r 12.6 a miscellaneous and disjointed provision containing sub-rules directed to entirely different subject matters. Contrary to that argument, the words “[d]espite subrule (1)” in subrule (2) link the two subrules. They indicate that the breadth of subrule (1) applies in a qualified manner in the specific circumstances outlined in subrule (2).
To treat r 12.6(2) as not concerned with pleadings, but as extending to any type of admission, fails to recognise that other rules specifically address the need for leave to withdraw admissions made voluntarily (r 17.2(2)) or made in relation to a notice to admit facts (r 17.3(3)) or a notice to admit documents (r 17.4(3)). Those provisions would not be necessary on the broad view taken by Schmidt AJ.
The heading of r 12.6 refers to SCR Pt 21 rr 3 and 5. The phrase in the equivalent subrule in the SCR, being Pt 21 r 3(2), states that “[s]ubrule (1) does not enable a party to withdraw…”. Subrule (1) was the equivalent of what is now r 12.6(1). The quoted words indicate that the rules had to be read jointly. Of course, it is possible that the change in language employed in r 12.6(2) was deliberate (ie from ““[s]ubrule (1) does not enable” to “[d]espite subrule (1)”). But there is no particular reason to infer that the slightly different language was meant to effect some substantive change. That being said, this historical factor is only of slight weight.
r 12.6 still requires an explicit identification of the admission that’s to be withdrawn, so that the process is explicit. So that it is clear what is being withdrawn and on what basis, and whether or not the Court should allow the amendment.
It was submitted that despite the amendments to the CLS in this case being struck through and underlined in the conventional fashion, “what was not explicit was the plaintiff in amending this is withdrawing the admissions”. Senior counsel said that the proposition that his predecessor consented to (or did not oppose) the amendment, and thus the withdrawal, “presupposes that there was a conscious engagement with something that wasn’t explicitly identified”.
This type of argument has some support: eg The Owners – Strata Plan No 82089 v Omaya Holding Pty Ltd [2024] NSWSC 992 at [54]-[55]. However, it should not be accepted.
As outlined above, r 12.6 is a facultative provision enabling a defendant to withdraw parts of its defence without having to amend the document. That may be done without consent if the withdrawal is not to the detriment of the other party, or it may be done with consent or by leave of the court. The purpose of requiring a “notice”, which must be filed, is to formalise this process (see above at [32]). It would be ironic if a facultative provision was construed as introducing a degree of formalism to the process of a party seeking to take the alternative path of amending its defence. The nature of that other pathway, in circumstances where that requires leave (cf r 19.1), is well-established. The party seeking to amend its pleading should send a marked-up proposed amended pleading to the other party; seek that party’s consent to it being filed; and then seek leave of the court to file the pleading. There is no need to complicate that procedure by the formalism of requiring a defendant to draft, serve and then file a notice, where that would be required in addition to the necessary notice of motion seeking leave to amend if the other party opposed the amendment.
As for the argument that this formalistic approach might have been an intended effect of the rule in order clearly to identify where admissions are being withdrawn, that fails to take account of “the adversarial paradigm of curial proceedings in Australia” where “[t]he parties define the issues to be determined at trial”: Productivity Partners Pty Ltd v Australian Competition and Consumer Commission (2024) 281 CLR 338; [2024] HCA 27 at [59]. In general courts are entitled to rely on a party, and the party’s legal representatives, to protect the party’s own interests. If one party proposes to amend its pleading, and provides a draft amended document marked up in the ordinary way, and the other party consents, then the court is entitled to assume that the consenting party has carefully considered its position, including in light of whether or not the changes withdraw an admission. It is “a cardinal principle of litigation … that parties are bound by the conduct of their counsel”: Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29 at [114].
The type of transparency argument put by Yufeng has been rejected by a majority of this Court before. In [2007] NSWCA 163, Tobias JA said the following (with Mason P agreeing):
[71] The appellant challenged the primary judge’s finding that the respondent’s amended defence to the amended cross-claim superseded its original defence with the consequence that any admission contained in the latter was thereby withdrawn. It was submitted that although the High Court had held in Laws at 84-86 that an unverified pleading is incapable of containing an admission, in the present case the original defence was verified so that it was, so it was contended, capable of containing an admission. In any event, reliance was placed upon r 12.6(2) of the Uniform Civil Procedure Rules 2005 which provides that a party may not withdraw any admission except with the consent of the other party or by leave of the court.
[72] The difficulty facing the appellant is that the amended defence was filed in court without objection with the result that either the appellant implicitly consented to its filing and, therefore, to the withdrawal of the admission contained in paras 5 and 6 (if such they be) or her Honour implicitly granted leave to the admission being withdrawn when she accepted the amended defence as being filed in court.
Similar sentiments were expressed in Owners Strata Plan No 80453 v Walsh [2014] NSWSC 729 at [11]-[14] and in Investec Bank (Australia) Limited v Steven Burge (No 3) [2012] NSWSC 7 at [9].
There is yet a further difficulty with Yufeng’s argument. If a court has made an order granting leave to file an amended pleading then that order has effect unless and until revoked or altered. Here, the primary judge made such an order. An order of the Supreme Court, as a superior court of record, is valid until set aside: State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 at [28]-[37]. More broadly, for all courts, a failure to comply with a requirement in the rules is an irregularity; it does not invalidate the proceedings or any document, judgment or order therein: Civil Procedure Act, s 63.
Parties and practitioners may make a mistake. They might fail to appreciate the significance of an amendment. A party in such a position is not without a potential remedy. An order granting leave to file an amended pleading is an interlocutory order. Such orders may be revisited during the course of a proceeding: note Moore (a pseudonym) v The King [2024] HCA 30; (2024) 98 ALJR 1119 at [26]. The mistaken party could approach the court, explain its error, and seek that the earlier interlocutory order be revoked or altered. That possibility has long been recognised: eg Mullins v Howell (1879) 11 Ch D 763. The onus of proof and persuasion would be on the party seeking the revocation or alteration and, as usual, the considerations in ss 56-58 and 60 of the Civil Procedure Act would be relevant.
Thus even if r 12.6 did speak to the current type of situation at all, the core issue would be not whether the process set out in that rule had been complied with. In substance, Yufeng was seeking to overturn the order made by the primary judge at the commencement of the hearing granting Mr Guo leave to file the ACLS. It failed to recognise this point.
Yufeng’s appeal fails for a series of reasons.
First, r 12.6(2) does not apply to statements of claim (see above at [42]-[44]).
Second, even if it did so apply, the rule does not require that a formal notice of the kind described in subrules (3) and (4) be provided when a defence is sought to be amended pursuant to a court order (see above at [45]-[51]).
Third, even if those subrules did have that effect, non-compliance with those requirements of the rules would not have undermined the validity and efficacy of the order made by the primary judge granting Mr Guo leave to file the ACLS (see above at [52]-[54]). It would have been necessary for Yufeng to make out a case why that order should have been overturned. Yufeng did not do so.
Fourth, any such application would not have succeeded in any case (and the same point applies if it had argued that there was a general principle against withdrawal of an admission beyond that set out in r 12.6(2) – cf [38]-[40] above). The order was made at the commencement of a five day hearing, presumptively after notice of the proposed amendments had been given. Yufeng was represented by experienced senior and junior counsel and by its current law firm. At no stage during the trial did Yufeng make any case of the kind now sought to be made on appeal. Nor did it do anything during the course of the hearing to suggest that its consent had been given by mistake. On the contrary, there was some cross-examination with respect to the payments of $2.63 million that had originally been included in items 3 and 4 of Schedule A in the CLS, but for a different forensic purpose (see above at [19]-[23]).
Yufeng asserted that it should win on appeal because, amongst other things, Mr Guo had provided the primary judge with “no explanation, let alone evidence, identifying the circumstances” in which the claimed admissions had been made and why he was seeking to change his position. That understanding is the wrong way around. No such explanation by Mr Guo was called for when Mr Huang and Yufeng did not oppose the filing of the ACLS. If Yufeng wished to change its position in the five days of the hearing that followed, then it would be expected that it provide evidence and good justification as to why it had changed its position on the issue. The same is even more true when it seeks to do so on appeal, as here, when the issue is raised not at the heel of the hunt but when the hunt is over.
Fifth, in any event, the allegations in question were not an admission (as to which, see above at [40]-[41]), nor were they a statement for the benefit of the other parties. Items 3 and 4 in Schedule A of the CLS formed part of Mr Guo’s positive assertion of what his claim was in relation to the existence of, and desired repayment of, the Loan. That claim was limited insofar as he claimed and acknowledged that certain amounts had been paid to him as interest pursuant to the Loan. His altering the allegations in his positive case with respect to these payments did not constitute alteration of an admission. He was not responding to any allegation in making those allegations.
[364] I am satisfied, having regard to the evidence summarised at paragraphs [271]-[315] above, that each of the payments set out in the Schedule to Mr Guo’s Amended Commercial List Statement represented a repayment in respect of the $16.8m loan. Mr Guo accepted, in closing address, that if the payments were not made in respect of interest, then they must have been made in respect of the principal: “It seems to us they’re either interest or they’re principal, no one suggests there’s a gift being made”.
Yufeng had filed a notice of motion seeking leave to amend its notice of appeal. In the end that motion was not pressed and the parties agreed it should be dismissed with costs. Such an order should be made. There is no reason why costs should not follow the event in the appeal.
The following orders should be made:
Appellant’s notice of motion filed 24 October 2025 dismissed with costs.
Appeal dismissed.
Appellant to pay the first respondent’s costs of the appeal.
ADAMSON JA: I agree with Kirk JA.
**********
Yufeng Investment Group (Australia) Pty Ltd
Guo [2026] NSWCA 3
(2024) 98 ALJR 1139
(2022) 294 FCR 422
(1992) 26 NSWLR 738
(2024) 98 ALJR 1119
(2012) 247 CLR 531
(2024) 281 CLR 338
(2023) 110 NSWLR 557
(2013) 252 CLR 118
(2007) 71 NSWLR 150
The notice of motion filed 24 October 2025 was dismissed with costs; the appeal was dismissed; and Yufeng was ordered to pay Guo’s costs of the appeal: [65].
Yufeng appealed on three overlapping grounds (Mr Huang has filed a submitting appearance). In substance it asserted that:
the two original particulars in items 3 and 4 of the CLS constituted admissions;
the formal process stipulated under r 12.6 was not complied with in relation to the withdrawal of those admissions, where that rule applied to the amendments made to the particulars;
in that context Mr Guo should be held to his initial admissions, albeit that they should be understood as an admission of the monies having been repaid as capital rather than as payments of interest; and
as a result, the repayment order should be modified on appeal to take account of the additional repayments, with the effect of reducing the amount that Mr Huang and Yufeng owed on the Loan by a net amount of some $2.2 million.
Yufeng’s arguments are without merit. The appeal should be dismissed. In what follows I first set out the background of the appeal (at [9]-[25]), then turn to consider the construction and significance of r 12.6 (at [26]-[54]), before setting out the series of reasons why the appeal fails (at [55]-[63]).
In July 2024 Mr Guo filed Commercial List Replies responding to each of the ACLRs, and saying relevantly that Mr Guo joined issue with each allegation in the ACLRs “other than express admissions of what Mr Guo has pleaded”. In dealing with a limitation period defence that had been raised by both Mr Huang and Yufeng, Mr Guo also pleaded (as one of a number of variants) that Mr Huang had caused the payments of interest to be made “as pleaded at paragraph 67 of the Commercial List Statement”, and each of those was a confirmation of the cause of action under the claimed loan agreement. Mr Guo was thus re-asserting that the Schedule A payments were interest payments.
At the same time that the ACLS was filed (in the circumstances explained immediately below), leave was sought and given to file amended Commercial List Replies. The amendments to those documents did not affect what was asserted about the interest payments having been made. Yufeng half-heartedly submitted to this Court that because those documents thus continued to refer to the original CLS, that had the effect that the “admissions” contained in Schedule A of the CLS had continuing force despite having been changed in the ACLS. Yet, in context, the reference to “CLS” in the Amended Commercial List Replies should be read on an ambulatory basis such as to encompass later iterations of the document. Mr Guo’s intent to withdraw reference to the payments previously identified at items 3 and 4 of Schedule 1 was made clear by the changes made in the ACLS.
I note for completeness that it might have been arguable in this case that such a general legal principle about needing leave to withdraw formal admissions which narrow the issues in dispute could apply to an admission in a statement of claim. Such an argument would face, at the least, the difficulty identified by Darke J in Sergi v Sergi [2019] NSWSC 865:
A premise of Yufeng’s challenge on appeal – that r 12.6(2) applies to statements of claim (including in that notion a CLS) – is thus not made out.
Sixth, even if the original items 3 and 4 were characterised as admissions, they expressly related to payments of interest not repayments of capital. As addressed in the judgment of the primary judge, there were various arrangements in place between the parties, with various payments going to and fro. In that context it cannot be said with respect to a payment made from Mr Huang to Mr Guo that the only alternative to it being a payment of interest with respect to the Loan was that it must have been a repayment of capital with respect to the Loan. True, the primary judge did find that the other claimed interest payments identified in Schedule A were repayments of capital: