ATL (Australia) Pty Limited v Cui and Ors [2021] NSWSC 1372

ATL (Australia) Pty Limited v Cui and Ors [2021] NSWSC 1372

The Second Defendant has an arguable defence under the Ankar principle, and refusing leave to amend would cause injustice. Although delay and non-compliance with case management obligations exist, justice requires granting leave to amend, subject to conditions including costs, as the Plaintiff can address prejudice through such conditions.

Parties
Plaintiff: ATL (Australia) Pty Limited; First Defendant: Jinsong Cui; Second Defendant: Jeffrey Tse Hung Lee; Third Defendant: Tse En Tang; Fourth Defendant: Liang Zhao; Fifth Defendant: Gondon HLHS Pty Ltd; Sixth Defendant: HLHS Partners Epping Pty Ltd; Seventh Defendant: Arise Building Pty Ltd; Eighth Defendant: Tang Asset Management Pty Ltd; Ninth Defendant: Lansha Asset Management Pty Ltd; Tenth Defendant: Lee's Asset Management Pty Ltd; Eleventh Defendant: Arise Group Pty Ltd
Jurisdiction
Australia
Judgment Date
26 October 2021
Procedural Posture
Civil Procedure Interlocutory Application / Application for Leave to Amend Defence Before Trial
Outcome
Second Defendant granted leave to amend Defence, subject to conditions, including as to costs.
Legal Topics
Amendment of Pleadings, Guarantee Law, Guarantor's Rights, Prejudice in Litigation, Case Management
Civil Procedure Amendment of Pleadings Guarantee Law Guarantor's Rights Prejudice in Litigation Case Management

Case Brief

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Parties

ATL (Australia) Pty Limited

Plaintiff

Jinsong Cui

First Defendant

Jeffrey Tse Hung Lee

Second Defendant

Tse En Tang

Third Defendant

Liang Zhao

Fourth Defendant

Gondon HLHS Pty Ltd

Fifth Defendant

HLHS Partners Epping Pty Ltd

Sixth Defendant

Arise Building Pty Ltd

Seventh Defendant

Tang Asset Management Pty Ltd

Eighth Defendant

Lansha Asset Management Pty Ltd

Ninth Defendant

Lee's Asset Management Pty Ltd

Tenth Defendant

Arise Group Pty Ltd

Eleventh Defendant

Procedural Posture

Civil Procedure Interlocutory Application / Application for Leave to Amend Defence Before Trial

Legal Issues

  1. 1 Whether the Second Defendant should be granted leave to amend the Defence to raise an 'Ankar' defence at a late stage in the proceedings.
  2. 2 Whether the delay and conduct of the Second Defendant's legal representatives justifies refusing the amendment.
  3. 3 Whether prejudice to the Plaintiff in allowing the amendment outweighs the injustice to the Second Defendant if leave is refused.

Ratio Decidendi

The Second Defendant has an arguable defence under the Ankar principle, and refusing leave to amend would cause injustice. Although delay and non-compliance with case management obligations exist, justice requires granting leave to amend, subject to conditions including costs, as the Plaintiff can address prejudice through such conditions.

Court Disposition

Second Defendant granted leave to amend Defence, subject to conditions, including as to costs.

Orders

  • Second Defendant has leave to amend the Defence on strict conditions, including costs.
  • Proceedings adjourned to 10.15 am on 27 October 2021 to allow parties to consider their positions in light of the ruling.