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[2026] NSWSC 664
Supreme Court of NSW
2026-05-28
Cavanagh J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Zhang v Tech Minerals Pty Ltd [2026] NSWSC 664
Hearing dates: 28 May 2026
Decision date: 28 May 2026
Jurisdiction: Common Law
Before: Cavanagh J
Decision: (1) Grant leave to the plaintiff to file in Court an amended notice of motion.
(2) The plaintiff’s application to amend the statement of claim is refused.
(3) The proceedings are dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW).
(4) Order 19 made by Meek J on 10 March 2026 is replaced by the following order:
The plaintiff is to pay the defendant’s costs of the proceedings before Meek J assessed in the amount of $30,330.98.
(5) The plaintiff is to pay the costs of the motions and hearing on 28 May 2026 as agreed in the amount of $19,278.90.
Catchwords: CIVIL PROCEDURE – case management – parties seeking competing orders – application of the plaintiff to amend statement of claim – defendant seeking summary dismissal of the proceedings – whether a defence under the Limitation Act 1969 (NSW) applies
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 58, 64, 65
Limitation Act 1969 (NSW), s 14
Uniform Civil Procedure Rules 2005 (NSW), r 13.4
Cases Cited: CLGC Pty Ltd v Zhang (No 3) [2025] NSWSC 36
Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234; [1984] HCA 17
Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213
Category: Procedural rulings
Parties: Ronglai Zhang (Plaintiff)
Tech Minerals Pty Ltd (First Defendant)
Mingfeng Gu (Second Defendant)
Representation: Counsel:
G McDonald (Plaintiff)
AJ Greinke (Defendants)
Solicitors:
Summit Legal (Plaintiff)
Auyeung Hencent & Day Lawyers (Defendants)
File Number(s): 2025/409998
HIS HONOUR: This matter comes before me today for the purposes of determination of three applications.
The first application is by the plaintiff (pursuant to an amended motion which I granted leave to file in Court) seeking leave to file an amended statement of claim.
The second application is by the first defendant, being the remaining defendant in the proceedings, seeking summary dismissal of the proceedings.
The third application is an application in respect of costs.
Mr McDonald of counsel appears for the plaintiff and Dr Greinke of counsel appears for the remaining two defendants.
At the outset, it was agreed that the hearing should proceed firstly with the plaintiff’s motion to amend the statement of claim because the outcome of that application would have a significant bearing on the defendant's application for summary dismissal.
The matter has a rather long history and has been subject to a hearing before Meek J on 10 March 2026 in reference to the number of defendants which the plaintiff sought to sue. At the end of that hearing, his Honour made orders restricting the plaintiff’s claim to the first and second defendants and striking out various paragraphs of the statement of claim.
In support of the plaintiff’s motion, the plaintiff relies on two affidavits of the plaintiff, dated 15 April 2026 and 26 May 2026. The defendant relies on affidavits of Simon Li, dated 20 March 2026 and 27 May 2026. Both parties provided helpful submissions.
The plaintiff sues as the assignee of a loan agreement between Rolex Services Pty Ltd (as trustee for the Rolex AFX Unit Trust) and the first defendant which was then known as AXF Resources Pty Ltd. The loan agreement is dated 26 May 2017. AXF Resources Pty Ltd is now known as Tech Minerals Pty Ltd.
As set out in the original statement of claim which was filed on 8 October 2025, the plaintiff maintains that at some time in May 2017, Rolex Services advanced the sum of $3,000,000 to the first defendant pursuant to a written loan agreement. The loan funds were paid from the trust account of W & H Lawyers Australia Pty Ltd at the direction of the first defendant and received into the first defendant’s nominated account.
The plaintiff maintains that the loan amount has not been repaid and seeks a judgment in respect of the amount said to be owing.
As set out in par 6 of the original statement of claim, which named a number of defendants, the plaintiff pleads that by a consultancy agreement executed on 23 July 2018 (styled as the variation agreement) the repayment date was extended to 31 December 2019.
The plaintiff pleaded other facts against other defendants including a deed of guarantee but, as a result of the orders of Meek J made on 10 March 2026, the proceedings now involve what I will describe as a simple (but in some ways complex) claim for repayment of the amount said to have been lent to the first defendant pursuant to the loan agreement.
The defendant’s position on the essential issue in the case, that is, whether the amount was loaned and whether it has to be repaid, is that there is an issue as to whether the loan amount was actually loaned at the time when it was said to be loaned or whether it is really incorporated into a number of other loans said to have been made by the plaintiff to the defendant which have been repaid.
The defendant says that it has already repaid approximately $9,000,000 to the plaintiff or the plaintiff’s company and that it may be that the amount has already been repaid.
I am unable and am not required to determine that factual issue, that is, whether any amount was actually loaned and whether that amount has been repaid for the purposes of this application. It is only necessary to say that there is at the very least a substantial issue on that issue.
The reason that the plaintiff is seeking to amend the statement of claim and the defendant is seeking to have the proceedings dismissed is that it is common ground that the facts pleaded in par 6 of the original statement of claim did not have the effect of extending the date for repayment to 31 December 2019.
It is common ground that, if the date for repayment is as set out in the original 2017 loan agreement (and not extended), then that date was long before 2019.
The significance of that in turn is that these proceedings were not commenced until 8 October 2025. Section 14 of the Limitation Act 1969 (NSW) provides a limitation period of six years from the date at which the cause of action accrued. In a case such as this, the cause of action accrued at the time of the breach. In a case based on a loan agreement it must be that the breach occurred when the defendant failed to repay the loan in accordance with the loan agreement.
If, as set out in the original statement of claim and indeed all variations of the statement of claim until the latest iteration, the time for repayment was extended until 31 December 2019, then the proceedings were commenced within time. However, if there was no extension of the time for payment then the proceedings are statute-barred.
Whilst no formal concession was made by Mr McDonald about that, in my view, that is clear.
The plaintiff is a former solicitor. It is uncontroversial that his practising certificate has been cancelled and indeed that he has been subject to a number of judgments in this Court including a judgment for criminal contempt by Richmond J: see CLGC Pty Ltd v Zhang (No 3) [2025] NSWSC 36. Prior to his current legal representatives becoming involved in the proceedings, he was representing himself, not as a solicitor, but as the plaintiff. He is now legally represented through solicitors and counsel.
As emphasised by the defendant, he pursues these proceedings in his own name pursuant to an assignment given to him by his own company. As Dr Greinke points out, the result is that the defendant cannot seek security for costs against his company. According to Dr Greinke, the plaintiff is a man of straw.
The substance of the amendment sought by the plaintiff is to plead the existence of an oral variation said to have been entered into between the plaintiff and a representative of the first defendant, Richard Gu, otherwise known as Mingfeng Gu, in or about July 2018.
The plaintiff now seeks to assert that there were discussions between him and Mr Gu pursuant to which there was an agreement that the repayment date for loan would be extended to what is described as the second of the dates in the consultancy agreement subsequently entered into and which is the subject of the pleading in the original statement of claim.
The consultancy agreement is said to be between AXF Resources Pty Ltd, that is the plaintiff's company, and a different company, RZ Consultancy Services Pty Ltd. It is dated 23 July 2018, which is after the date of the purported oral variation of the original loan agreement.
Mr McDonald submits that the effect of the oral agreement is that the date for payment of the loan would be that set out in cl 1.3.1(b) of the consultancy agreement being the date of conclusion of the proceedings in the Supreme Court of Victoria, that is 31 December 2019.
If that is the date for payment then, on the plaintiff’s case, the proceedings were commenced within time and the defendant has no limitation defence available to it.
The plaintiff thus seeks to amend the statement of claim to reflect the change in instructions, the change being that the consultancy agreement did not determine the date of repayment for the loan but that was determined by the oral agreement.
As is apparent from the substantial changes between the original version of the statement of claim and the proposed amended statement of claim (provided to the defendant only two days before this hearing), the new proposed document somewhat simplifies the case.
The defendant opposes the amendment on three grounds being:
That the proposed amended pleading does not properly disclose a cause of action having regard to the way in which the new oral agreement is pleaded;
That the application could only be pursued pursuant to s 65 of the Civil Procedure Act 2005 (NSW) (“CPA”) and none of the provisions of s 65 are satisfied; and
That having regard to s 58 of the CPA, I would not permit the amendment in any event.
There is an issue between the parties as to whether this is an application pursuant to s 64 or s 65 of the CPA.
Section 64 is in the following terms:
64 Amendment of documents generally
(1) At any stage of proceedings, the court may order—
(a) that any document in the proceedings be amended, or
(b) that leave be granted to a party to amend any document in the proceedings.
(2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings.
(3) An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made.
(4) If there has been a mistake in the name of a party, this section applies to the person intended to be made a party as if he or she were a party.
(5) This section does not apply to the amendment of a judgment, order or certificate.
65 Amendment of originating process after expiry of limitation period
(1) This section applies to any proceedings commenced before the expiration of any relevant limitation period for the commencement of the proceedings.
(2) At any time after the expiration of the relevant limitation period, the plaintiff in any such proceedings may, with the leave of the court under section 64 (1) (b), amend the originating process so as—
(a) to enable the plaintiff to maintain the proceedings in a capacity in which he or she has, since the proceedings were commenced, become entitled to bring and maintain the proceedings, or
(b) to correct a mistake in the name of a party to the proceedings, whether or not the effect of the amendment is to substitute a new party, being a mistake that, in the court’s opinion, is neither misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party, or
(c) to add or substitute a new cause of action, together with a claim for relief on the new cause of action, being a new cause of action that, in the court’s opinion, arises from the same (or substantially the same) facts as those giving rise to an existing cause of action and claim for relief set out in the originating process.
(3) Unless the court otherwise orders, an amendment made under this section is taken to have had effect as from the date on which the proceedings were commenced.
(4) This section does not limit the powers of the court under section 64.
(5) This section has effect despite anything to the contrary in the Limitation Act 1969.
(6) In this section, originating process, in relation to any proceedings, includes any pleading subsequently filed in the proceedings.
The effect of s 65 is to permit an amendment in respect of proceedings commenced before the expiration of any relevant limitation period, even if the amendment is made after the expiration of the limitation period, in certain circumstances.
Those circumstances are set out in pars 65(2)(a), 65(2)(b) and 65(2)(c). As set out in s 65(3), unless the Court otherwise orders, an amendment made in accordance with s 65 is taken to have had effect as from the date on which the proceedings were commenced.
In this instance, if the plaintiff is permitted to amend under s 65, the amendment is taken to have effect from 8 October 2025, which is less than six years after the date on which the plaintiff says the cause of action accrues.
I should say that there appears to be no dispute between the parties that the cause of action accrues under contract as of the date of breach and the date of the breach would be the day on which repayment was due: see Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234; [1984] HCA 17.
I should also add that the plaintiff also seeks to correct the name of the first defendant. If that was the only amendment, then I would readily accept that s 65 applies, because of par 65(2)(c). However, that is not the only amendment and the amendment which the plaintiff seeks to make is said by the defendant to be one of substance. It is to plead a new agreement (according to the defendant).
The first question which arises is whether the plaintiff is seeking to add or substitute a new cause of action together with a claim for relief on the new cause of action. If so, the question is whether the new cause of action arises from the same or substantially the same facts as those giving rise to the existing cause of action.
The plaintiff says that he is not seeking to rely on a new cause of action but is merely amending the statement of claim to reflect what is, according to the plaintiff, the true position, that is, the correct basis on which the time for repayment of the loan was extended. He says that the original pleading is not correct and that the time for repayment was extended pursuant to an oral agreement styled as the variation agreement between him and Mr Gu.
The plaintiff says that this does not alter the nature of his cause of action. His cause of action arises under the loan agreement. He is suing on the loan agreement but maintains that the date on which the loan was repayable was varied through that oral variation.
The defendant says that the effect of the pleading is to introduce a new cause of action, that is, a cause of action based on the variation agreement.
I do not agree. In my view, the plaintiff is seeking to amend the date on which the defendant is said to have been in breach of the loan agreement. This is a form of particularisation of the date on which the loan was repayable. Further, the plaintiff has already pleaded that the date on which the loan was repayable was 31 December 2019 and thus there is no change to that date.
In the circumstances, s 65 does not apply but s 64 does.
Section 64 applies to amendment of documents generally. As set out in s 64, all necessary amendments should be made for the purposes of determining the real questions raised in the proceedings. This is, of course, subject to s 58 of the CPA.
Section 58 is in the following terms:
58 Court to follow dictates of justice
(1) In deciding—
(a) whether to make any order or direction for the management of proceedings, including—
(i) any order for the amendment of a document, and
(ii) any order granting an adjournment or stay of proceedings, and
(iii) any other order of a procedural nature, and
(iv) any direction under Division 2, and
(b) the terms in which any such order or direction is to be made,
the court must seek to act in accordance with the dictates of justice.
(2) For the purpose of determining what are the dictates of justice in a particular case, the court—
(a) must have regard to the provisions of sections 56 and 57, and
(b) may have regard to the following matters to the extent to which it considers them relevant—
(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,
(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,
(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,
(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),
(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,
(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,
(vii) such other matters as the court considers relevant in the circumstances of the case.
The Court must have regard to a number of factors, including:
The application for leave to amend must be made for a proper purpose;
The proposed amendment must be proper in substance and form (that is, not liable to be struck out);
The amendment must not cause undue prejudice to the other party; and
The amendment must be consistent with the dictates of justice having regard to s 58.
The defendant submits that I would not permit the amendment, having regard to a number of factors.
Firstly, the defendant submits that the plaintiff is seeking to rely on a new agreement. I have already dealt with that, but for the purposes of s 64, the defendant says that the pleading of the new agreement is deficient.
The plaintiff only pleads that there were discussions with Mr Gu at some time in July 2018 pursuant to which the plaintiff agreed to extend the time for repayment until that date as referred to in the consultancy agreement. The plaintiff does not plead any consideration and does not plead any form of estoppel. Dr Greinke suggests that this is a deficiency in the new pleading.
Secondly, this is the fifth version of the statement of claim, perhaps not all of which have been filed. The suggestion of an oral agreement or oral variation of the written agreement was not raised before Meek J and was not raised until two days before this application.
Thirdly, it is relevant that the plaintiff is pursuing these proceedings in his own name pursuant to an assignment by his own company to him. Again, as identified by the defendant in submissions today, that has the effect of protecting the company from any application for security for costs or any adverse costs orders in due course. The assignment was only for a sum of $10.
Fourthly, there has been no explanation given by the plaintiff as to why the amendment is sought at this late stage and, by this late stage, I mean after the hearing before Meek J, after the time when Meek J ordered any new amendment be made and after substantial work has already been undertaken in the defence of the existing proceedings.
Fifthly, the defendant submits that it will suffer irreparable prejudice. The defendant will need to investigate the circumstances of this alleged oral variation. The defendant will need to undertake examination of documents and substantial work will be required to prepare a proper defence to the claim.
Finally, the defendant submits that it cannot be properly compensated by costs. The defendant submits that, if I allow the amendment, I should order that the plaintiff pay the defendant's costs thrown away and that the amendment not be allowed until such time as the costs are paid but there is no agreement between the parties as to the amount of those costs and there may be a dispute as to the amount of those costs.
In my view, there is merit in the defendant’s submissions. This is an application being made by the plaintiff at the last minute in response to an application to strike out a statement of claim. It is being made in circumstances in which the plaintiff acknowledges that the original allegation of a variation based on a consultancy agreement is without merit. The effect of that is that without a pleading of some other basis for an extension of the time to repay the loan, the proceedings are statute-barred.
They are statute-barred because they were not commenced within six years of the date on which the loan agreement specifies the loan must be repaid. As such the cause of action either accrued on the date specified in the loan agreement or what I will call the extended date. As there is nothing in the consultancy agreement which provides for an extension then at least until this very late application the cause of action must have accrued more than six years before the filing of the original statement of claim.
I accept the defendant’s submission that even the proposed amended statement of claim does not properly articulate the basis of the plaintiff’s new claim (as to how the date was extended) and that the proceedings would be liable to be struck out even if the amendment is allowed.
I do have a real concern as to what has happened in these proceedings. No explanation has been offered by the plaintiff as to why this suggestion of an oral variation was not raised earlier in these proceedings and not raised before Meek J.
I accept that the plaintiff did not have the benefit of proper legal representation (which he obviously now has) but he is a solicitor of considerable experience and he must have been aware that there was an oral agreement between him and Mr Gu. It is most surprising that it was not raised until two days before he was facing a strike out application.
I also accept that the defendant will suffer irreparable prejudice which cannot be compensated by way of costs.
The decision whether to allow an amendment is discretionary. I must act in accordance with the dictates of justice and I must ensure that justice is afforded to all parties.
For the reasons I have set out, the plaintiff’s application to amend the statement of claim is refused.
In these circumstances, it must be that the defendant is entitled to succeed on its motion to have the proceedings dismissed.
The reason that the defendant is entitled to proceed on the motion to have the proceedings dismissed is because the proceedings are out of time. Without the proposed amendment, the plaintiff is left with an unarguable case. It accepts that the consultancy agreement does not have the effect of extending the date for repayment under the loan.
As such the time for repayment and the date of the breach was more than six years before the commencement of proceedings.
In circumstances in which the proceedings are statute-barred, the plaintiff has no reasonably arguable cause of action and the proceedings must be dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW).
Firstly, the defendant seeks a variation of the costs orders made by Meek J on 10 March 2026 His Honour ordered that the plaintiff pay the costs of the proceedings. The defendant now seeks that those costs be paid on a gross sum basis. The plaintiff does not oppose that order but submits that the amounts sought by the defendant should not be allowed.
As set out in the affidavit of Mr Li, the costs sought in respect of the proceedings before Meek J are $50,550.64.
As set out in par 32 of the plaintiff's submissions of 18 May 2026, the plaintiff says they should be discounted down to $42,000 which represents:
A 100 per cent payment for disbursements;
A 90 per cent payment for counsel’s fees; and
A 75 per cent payment for solicitors’ fees.
The plaintiff submits that that approach does not accurately reflect the general approach to gross sum costs orders, that is, the defendant is in effect seeking an order for indemnity costs. In other words, the defendant starts with the proposition that the defendant would be entitled to recovery of its full costs on an assessment basis and then discounts down to a certain extent.
The plaintiff submits that the proper approach would be to start with a percentage of the full amount of costs and then allow a discount which is usually applied in respect of gross sum costs orders. Any gross sum can only be fixed broadly having regard to the information before the court, and the approach taken to estimate costs must be logical, fair and reasonable: Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 at [22] (Giles JA).
In my view, there is merit in the plaintiff’s submission on this issue. In circumstances in which a party seeks an order for costs without going through the process of assessment, there must be a discount.
I accept generally the plaintiff’s submissions on this issue. I propose to allow 60 per cent of the total costs sought by the defendants. That is, 60 per cent of $50,550.64, being $30,330.98.
The costs of the motion are part of the costs of the proceedings and the plaintiffs should pay the costs of the proceedings.
The only thing that is not part of the proceedings was the filing of the defence, which is provided for within the costs order schedule in the submissions.
Again, I am inclined to again make an order for 60 per cent of the total costs sought by the defendants.
The plaintiff does not oppose the ordering of a gross sum costs order. Mr McDonald candidly says he could not argue against the same approach, being 60 per cent.
In those circumstances, particularly having regard to the approach of the plaintiff to these costs orders, the plaintiff should pay the costs of the proceedings, which includes the costs of the motion and the hearing today, assessed at 60 per cent of the amount claimed by the defendants.
Therefore, I make the following orders:
Grant leave to the plaintiff to file in Court an amended notice of motion.
The plaintiff’s application to amend the statement of claim is refused.
The proceedings are dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW).
Order 19 made by Meek J on 10 March 2026 is replaced by the following order:
The plaintiff is to pay the defendant’s costs of the proceedings before Meek J assessed in the amount of $30,330.98.
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Zhang
Tech Minerals Pty Ltd