Gong v Tasman Funds Management Pty Ltd [2023] NSWSC 1366

Gong v Tasman Funds Management Pty Ltd [2023] NSWSC 1366

Leave to amend the statement of claim and join new defendants was granted because plaintiffs’ delay was sufficiently explained as responsive to developments out of their control (including appointment of administrators and receivers), prejudice to defendants could be managed, and amendments would not delay an already set hearing. The claim was not obviously untenable; criticisms of completeness or vagueness could be addressed via further amendment.

Parties
First Plaintiff: Benyi Gong; Second Plaintiff: Qingju Tian; Third Plaintiff: Deshen Wang; Fourth Plaintiff: Ruiyong Hao; First Defendant: Tasman Funds Management Pty Ltd; Second Defendant: TFM Epping Land Pty Ltd (receivers and managers appointed); Third Defendant: Sino-Au Property Investments Pty Limited; Proposed Fourth Defendant: Tasman Development Holdings Pty Ltd; Proposed Fifth Defendant: Philip Campbell-Wilson and Said Jahani of Grant Thornton as joint and several Receivers and Managers of TFM Epping Land Pty Ltd; Proposed Sixth Defendant: John Melluish and Stephen Mitchell as Deed Administrators of TFM Epping Land Pty Ltd; Proposed Seventh Defendant: Perpetual Corporate Trustee Limited in its capacity as custodian for the QCAX Australian Property Income Fund (Atlas)
Jurisdiction
Australia
Judgment Date
10 November 2023
Procedural Posture
Notice of Motion – Amended Statement of Claim; Joinder of Parties; Leave to Continue Proceedings / Interlocutory Hearing – Amendment/joinder Application Determination
Outcome
Leave to amend statement of claim and join additional defendants granted; costs ordered as specified.
Legal Topics
Amendment of Pleadings, Joinder of Parties, Voluntary Administration, Deed of Company Arrangement, Trusts and Trustees, Resulting Trusts, Quistclose Trusts, Security for Costs
Practice and Procedure Civil Procedure Corporations Equity Amendment of Pleadings Joinder of Parties Voluntary Administration Deed of Company Arrangement +4 more

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Parties

Benyi Gong

First Plaintiff

Qingju Tian

Second Plaintiff

Deshen Wang

Third Plaintiff

Ruiyong Hao

Fourth Plaintiff

Tasman Funds Management Pty Ltd

First Defendant

TFM Epping Land Pty Ltd (receivers and managers appointed)

Second Defendant

Sino-Au Property Investments Pty Limited

Third Defendant

Tasman Development Holdings Pty Ltd

Proposed Fourth Defendant

Philip Campbell-Wilson and Said Jahani of Grant Thornton as joint and several Receivers and Managers of TFM Epping Land Pty Ltd

Proposed Fifth Defendant

John Melluish and Stephen Mitchell as Deed Administrators of TFM Epping Land Pty Ltd

Proposed Sixth Defendant

Perpetual Corporate Trustee Limited in its capacity as custodian for the QCAX Australian Property Income Fund (Atlas)

Proposed Seventh Defendant

Procedural Posture

Notice of Motion – Amended Statement of Claim; Joinder of Parties; Leave to Continue Proceedings / Interlocutory Hearing – Amendment/joinder Application Determination

Legal Issues

  1. 1 Whether leave should be granted to amend statement of claim and join further defendants
  2. 2 Whether delay in bringing the motion was sufficiently explained or arose from tactical decision
  3. 3 Whether pleadings were defective or embarrassing

Ratio Decidendi

Leave to amend the statement of claim and join new defendants was granted because plaintiffs’ delay was sufficiently explained as responsive to developments out of their control (including appointment of administrators and receivers), prejudice to defendants could be managed, and amendments would not delay an already set hearing. The claim was not obviously untenable; criticisms of completeness or vagueness could be addressed via further amendment.

Court Disposition

Leave to amend statement of claim and join additional defendants granted; costs ordered as specified.

Orders

  • If necessary, plaintiffs have leave to continue the proceedings nunc pro tunc, pursuant to s 444E(3)(c) Corporations Act 2001 (Cth).
  • Plaintiffs have leave to file a further amended statement of claim after 28 days including amendments notified.