BCEG International (Australia) Pty Ltd v Xiao [2021] NSWSC 1545

BCEG International (Australia) Pty Ltd v Xiao [2021] NSWSC 1545

Justice of the case requires the defendants be granted leave to file an Amended Commercial List Response, given that there is time for the plaintiff to respond and no suggestion plaintiff cannot meet the proposed defences. Defendants should pay the plaintiff's costs thrown away by the amendment and the vacation of the hearing date, as the cause was ultimately their decision to abandon privilege.

Parties
Plaintiff: BCEG International (Australia) Pty Ltd; First Defendant: Yu Xiao; Second Defendant: Yan Ying Chen; Third Defendant: Interlink Laboratory Pty Ltd; Fourth Defendant: Interlink Wagga Central Pty Ltd; Fifth Defendant: West Wyalong Marketplace Pty Ltd
Jurisdiction
Australia
Judgment Date
30 November 2021
Procedural Posture
Civil / Procedural Ruling on Amendment and Costs
Outcome
Leave granted to file Amended Commercial List Response; costs orders against defendants
Legal Topics
Commercial List Procedure, Amendment of List Response, Costs Thrown Away, Privilege Against Self Incrimination
Civil Procedure Equity Commercial List Procedure Amendment of List Response Costs Thrown Away Privilege Against Self Incrimination

Case Brief

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Parties

BCEG International (Australia) Pty Ltd

Plaintiff

Yu Xiao

First Defendant

Yan Ying Chen

Second Defendant

Interlink Laboratory Pty Ltd

Third Defendant

Interlink Wagga Central Pty Ltd

Fourth Defendant

West Wyalong Marketplace Pty Ltd

Fifth Defendant

Procedural Posture

Civil / Procedural Ruling on Amendment and Costs

Legal Issues

  1. 1 Should defendants be granted leave to amend their List Response to raise new positive defences?
  2. 2 Should defendants pay plaintiff's costs thrown away by the vacation of the hearing date?

Ratio Decidendi

Justice of the case requires the defendants be granted leave to file an Amended Commercial List Response, given that there is time for the plaintiff to respond and no suggestion plaintiff cannot meet the proposed defences. Defendants should pay the plaintiff's costs thrown away by the amendment and the vacation of the hearing date, as the cause was ultimately their decision to abandon privilege.

Court Disposition

Leave granted to file Amended Commercial List Response; costs orders against defendants

Orders

  • Defendants granted leave to file an Amended Commercial List Response (subject to amended admission)
  • Defendants to pay plaintiff's costs thrown away by the amendment